J. Sroczyński for WuW No. 12/2012 – Publication of the green paper on the proposed amendment to the Act on the Protection of Competition and Consumers

The Office of Competition and Consumer Protection (“OCCP”) has published a green paper regarding the proposed amendment of the Law of February 16, 2007 on the Protection of Competition and Consumers (the “Law”). The document describes changes of various existing procedures and introduces new enforcement tools. The main change in the merger control area is the planned introduction of a two-phase review system. A shorter, one-phase procedure would be applicable to simple concentrations, which do not raise competition issues. Other notifications would be moved to a second phase, involving a detailed substantive review.

In the area of anticompetitive practices, a system of remedies would be introduced, aimed at an elimination of negative anticompetitive effects of a prohibited practice. It is also planned to enable a voluntary submission to a fine by undertakings which would thus waive their right to appeal a prohibition decision. Such voluntary fine would be decreased in comparison to a fine imposed according to the regular procedure.

Prerequisites which the OCCP applies when determining the amount of a fine would be defined in the Law, to assure more transparency in that respect. It is also planned to introduce a system whereby fines would be imposed on individuals engaged in anticompetitive activities. In the leniency regulations, a system of leniency-plus would be introduced, whereby undertakings could benefit from a disclosure of cartels operating on markets other, than the relevant market for the initial leniency application.

It is also planned to amend various provisions of the Law concerning inspections and searches, both to increase the enforcement efficiency of the OCCP and to remove certain important interpretation doubts.

The green paper has been subject to the public consultation procedure and evoked heated discussions in the business and legal communities. In particular, the plans to impose fines on individuals raise numerous questions and doubts. The document of the OCCP is currently under the governmental legislative review. It is expected that the amended Law may enter into force sometime in 2013.

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 12/2012.